A Copyfighter’s Musings

1.  The one that everyone’s been talking about – Jessica Litman’s Sharing and Stealing.  See comments here, here, and here.

2.  One I stumbled upon in my research – Mark Lemley and R. Anthony Reese’s Stopping Digital Copyright Infringement Without Impeding Innovation.  The authors argue for several interesting alternatives to enforcing copyright against third-parties. 

They also take an interesting approach to Napster and Aimster, favoring the latter approach over the former while finding fault in both.  Their main reason is that Napster affirms that any actual knowledge of infringement, regardless of a capacity to act on that knowledge, nullfies the Sony defense.  That is a plausible reading, but, as I have said before in light of Grokster, I don’t think it’s correct.

Set aside, for the moment, the confusing way of applying Sony in the contributory section and the lack of application in the vicarious section, and look at the Appeals decision’s general approach.  Both section’s of the Court’s analysis stressed Napster’s control over users’ activities.  Moreover, both sections, as well as the remedy section, stressed that Napster should only be expected to control infringing uses within the bounds of its current technology.  As I wrote the other day, this rule essentially preserves the possibility for a multiplicity of design models on the Internet.  Centralized P2P like Napster can exist because it has substantial non-infringing uses, but it is still expected to control the infringing uses within the bounds of its system.

Regardless of whether you agree with Lemley’s and Reese’s assessment of Napster’s knowledge requirement, their criticisms work against my argument above because what the Appeals court said and what actually happened are quite different.  The District Court and Appeals Court created a remedy that a) went beyond the bounds of Napster’s system, by essentially requiring them to analyze the content of files, and b) required Napster to screen out all infringement of a given song, which was essentially impossible.  In that way, they negated the technology-preserving aspect of the opinion.

Lemley and Reese would say that that damns the general approach I laid out above – though it does look less plausible practically speaking, I’m not so sure it’s a terrible rule.  More later.

Filed by Derek Slater at 6:26 pm under General news
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